The procedure for dismissing a pensioner at his own request

Author of the article: Anastasia Ivanova Last modified: January 2021 11014

According to the Labor Code of the Russian Federation, employees who have reached old age have the same rights as other employees. In this case, the age criterion is not considered an objective basis for terminating the employment relationship. This means that dismissal a year before retirement is permissible only under special circumstances or on the employee’s personal initiative. The procedure is no different from the standard regulations for terminating an employment agreement.

How to confirm pre-retirement status

The fact that a person is already about to retire is confirmed by passport data. In addition, a pre-retirement person can receive a special certificate issued by the Pension Fund. In accordance with the Resolution of the Board of the Pension Fund of the Russian Federation dated April 4, 2019 No. 206p, a certificate can be obtained in several ways:

• by requesting it in person or by mail at the territorial office of the Pension Fund of Russia;
• by sending a request through the MFC;
• via the Internet - by submitting a request on the government services portal or in your personal account on the Pension Fund website.

The period for issuing a certificate is 3 working days. When applying online, you do not need to submit any documents. If applying in person, you will need a passport.

A pre-retirement certificate is issued free of charge.

What does the law say?

To protect citizens of pre-retirement age, the government adopted Law No. 1032-1 of April 19, 1991, according to which it is possible to receive an early old-age pension.

In order to receive it you need to:

• The person was declared unemployed;
• Had a work experience of 20 years for women and 25 for men;
• When reducing, be over 53 for a woman and 58 for a man;
• Voluntary desire for her early retirement.

To be recognized as unemployed, you must:

• have an entry in the work book about dismissal due to staff reduction;
• Be registered with the employment department;
• Do not refuse job offers more than twice.

What is an unreasonable refusal to hire?

The Labor Code of the Russian Federation does not give a clear definition of this concept. In Art. 64 of the Labor Code of the Russian Federation, an unjustified refusal is formulated as follows:

Restriction of rights or establishment of advantages when concluding an employment contract depending on gender, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence, attitude to religion, beliefs, membership in public associations or any social groups, as well as other circumstances not related to the business qualities of employees.

Pay attention to the highlighted phrase about business qualities: what these qualities mean is not spelled out in the law, which means that a lot can be summed up under them. For example, the Supreme Court of the Russian Federation in Resolution No. 2 of March 17, 2004 recommends taking into account the professional, qualification and personal qualities of the employee, as well as his state of health.

Who is "pre-retirement"

The concept of “pre-retirement age” existed before; labor legislation defined it as the age at which two years remain before retirement, including early retirement.
From 2021, five years before retirement are recognized as pre-retirement. The pension reform is gradually shifting the boundaries of the working age, and therefore the pre-retirement five years. To make it easier for you to navigate the transition period, we have compiled a table for men and women:

Year of retirement	Retirement age		Pre-retirement age
Women	Men	Women	Men
2019	55,5	60,5	50,5	55,5
2020	56,5	61,5	51,5	56,5
2021	58	63	53	58
2022	59	64	54	59
2023	60	65	55	60

How can a pre-retirement employee be legally refused employment?

Since there are no clear definitions in the law, there are at least 3 legal ways not to hire an elderly person:

1. A pre-retirement employee is not suitable for the vacancy based on the business qualities specified in the job description by the employer (and a lot can be specified there).
2. The person does not meet the requirements of professional standards (although the employer must officially introduce them). By the way, the employer may introduce additional requirements to professional standards - for example, employees need to know Chinese if the company cooperates with representatives from China. That is, requirements can be prescribed that are obviously impossible for most people to meet.
3. The applicant does not qualify for the position due to health reasons (if the job involves increased demands on well-being, physical capabilities, etc.). And even if you are sent for a medical examination, in most cases there is no hope that an elderly person is in perfect health.

Dismissal procedure

The procedure for dismissing an employee of pre-retirement age is carried out in accordance with standard norms. However, if the process is initiated by the employer, then in some cases it is necessary to provide the employee with an alternative option to continue activities. Moreover, the vacancy may either correspond to the person’s qualifications or be inferior or less paid.

A new position is sought if dismissal occurs for the following reasons:

• staff reduction;
• inconsistency with the position;
• reinstatement of an employee previously assigned to work, subject to a corresponding court decision;
• employee disqualification;
• termination of access to state secrets.

Transfer to another position is possible only with the written consent of the employee. In case of refusal, the dismissal procedure starts. The same as in the case of impossibility of providing another position.

The standard process for terminating an employment agreement includes the following steps:

1. Preparation of the order. The document is issued by the enterprise after the employee notifies management of his intention to resign. If the initiative comes from the employer, then the order is prepared after notifying the employee (in case of liquidation of the enterprise - 2 months in advance).
2. Familiarization of the order with the employee's signature.
3. Issuance of a work book and due payments. Done on the day of dismissal indicated in the order.

The mark placed in the work book depends on the grounds on which the process of termination of the contract was initiated. For example, staff reduction, liquidation of the company, disqualification or personal desire of the employee. The entry must accurately reflect the reason and the corresponding article of the Labor Code of the Russian Federation, therefore, on the last day of work, it is recommended to carefully check the text entered in the documents. Detected deficiencies require immediate correction under the seal and signature of the responsible person.

In addition, if the dismissal is due to staff reduction, then, according to Article 82 of the Labor Code of the Russian Federation, the primary trade union body must be notified about this at least 2 months in advance. The period and procedure for the organization's participation may be changed in accordance with the provisions of the collective agreement.

Frequently asked question: I am 53 years old, can I be laid off at work?

Answer: It all depends on the gender of the employee.

So, for a woman in 2021, 53 years old will still be the pre-retirement age , which means she can be fired only on the grounds expressly specified in labor legislation and in compliance with all established procedures.

When making redundancies, the employer will have to focus not on age, but on professional skills and experience.

For men, the pre-retirement age in 2021 is 55.5 years , and he will not be able to take advantage of protection and guarantees.

Answering the question whether an employee can be fired if he is 53 years old, the answer is: it is possible to terminate the employment contract, but a woman will enjoy the protection that is provided for pre-retirement workers, a man will not.

Labor rights of workers of pre-retirement age

So, if you belong to this category of citizens, then it will be useful to know about your rights:

1. the right to additional days for medical examination. The employer is obliged to provide two working days, which are paid based on average earnings, for the opportunity to undergo medical examination. The legislation does not establish specific dates; they are agreed with the employer. To exercise this right, you need to write an application:

To the director of the MDOU Ekaterinburg V.S. Petrova from the teacher-methodologist of the MDOU of Yekaterinburg Vasilyeva V.G. Born 01/10/1965

STATEMENT

In accordance with Part 1 of Art. 185.1 of the Labor Code of the Russian Federation, I ask you to release me from work to undergo medical examination for 2 working days on February 20 and 21, 2021.

02/10/2019, signature

As a general rule, medical examinations are carried out once every two years, in some cases – annually (for example, in relation to workers who are disabled in combat). The law does not oblige the employee to be sent for medical examination. The employee undergoes such a medical examination voluntarily, turning to the employer with a statement, an example of which we presented above.

2. the right to receive unemployment benefits in the amount of up to 11,280 rubles for one year. From January 1, 2021, those persons of pre-retirement age who registered with the employment center and were declared unemployed have the right to receive increased benefits for one year (for other categories of citizens, the benefit is up to 8,000 rubles).

3. the right to retraining and attending advanced training courses. The cost of additional training will be reimbursed to the employer from the budget. The federal program is already being successfully implemented in the regions; the Government of the Russian Federation has allocated more than 5 billion rubles for it. lost the right to receive benefits due to the expiration of the payment period, the payment of benefits is extended for a period of no more than three months, but no later than October 1, 2021. During 2019-2020, many regional authorities developed and applied standard recommendations of the Ministry of Labor for training opportunities for people who have 5 or less years left until retirement. This guarantees compliance with the law.

The program should work something like this: those employers who will participate in the program will be compensated for the costs of training such citizens at the expense of the state. Compensation will only occur if certain conditions are met:

• training has been completed in full (if the training is not completed, the cost will not be reimbursed);
• protection from dismissal - pre-retirees who have completed training will not be fired this year (exception - at their own request);
• one pre-retirement student studied once.

Control over the implementation of the vocational training program will be entrusted to the employment service, with which the employer who wishes to organize additional courses will enter into an agreement.

In addition to the listed opportunities, pre-retirees can count on protection from unjustified dismissal due to staff reduction and on a number of other grounds.

Termination of contracts with persons of pre-retirement age upon liquidation of an enterprise

Let us consider the conditions for documentary support of the liquidation of an enterprise. The procedure is accompanied by the dismissal of absolutely all employees without taking into account their relationship to preferential categories.

Operation	Description
Making a decision to terminate activities	After documenting the decision, management passes to the liquidation commission
Notification of employees 2 months in advance for the dates of termination of contracts (Article 180 of the Labor Code of the Russian Federation)	The upcoming termination of contracts in connection with the cessation of the activities of an organization or individual entrepreneur is notified in writing.
Payment of benefits in the amount of average earnings	Amounts are paid for 2 months provided for job search. Employees who quit before the appointed date receive benefits in full. When employed, benefits for 2 months are paid proportionally until the end of the notice
Getting average earnings for the third month	The payment is made if the employee is timely registered with the employment service. Registration takes 2 weeks

Reasons for leaving before retirement

By law, employers cannot fire employees on their own whim or personal grudge. must be compelling reasons , the list of which is described in the Labor Code of the Russian Federation, the contents of Article 81.

The loss of a job by a citizen is accompanied by termination of the existing employment agreement. This is considered a dismissal made at the initiative of the employer.

What will protect the employee? – a collective agreement, when there is a separate clause regarding the impossibility of dismissal. For example, a person cannot be kicked out until he reaches a certain (retirement) age. In practice, few managers write such agreements or the specified clause is not included there.

The following are considered valid reasons for dismissing an employee:

· liquidation of the organization (then everyone loses their jobs, this is a common misfortune);

· reduction of staff/total number of employees;

· inadequacy of the employee (his professional unsuitability);

· change of owner (then the manager/his deputies + chief accountant are changed, ordinary employees remain);

· repeated violation/ignoration by the employee of his own duties;

· violations of general labor discipline and safety rules;

· a person committing an immoral act or making wrong decisions that resulted in large-scale losses;

· Submitting false documents/incorrect information during an interview;

· carrying out fraudulent schemes at work ;

· committing thefts, forgeries or damage to company property.

Any of the above factors must be confirmed first. Acting thoughtlessly is dangerous.

It is punishable to force someone to quit.

Mistakes made when dismissing people of pre-retirement age

There is a possibility of errors occurring when completing the dismissal procedure.

Condition	Wrong position	True Execution
Taking Advantage of Downsizing	An employee who has a layoff benefit due to qualifications may be absent on the day of dismissal	Persons who are laid off at the same time as other employees can take advantage of the layoff benefit.
Assignment of an early pension to a person registered with the Central Pension Fund	The employee applies directly to the Pension Fund of Russia, bypassing the central control center	To apply for an early pension, a person submits an application to the employment center. Attached are documents for further submission to the Pension Fund.

Question No. 1. Can a person of pre-retirement age applying for early retirement refuse the vacancies offered by the Central Employment Service?

Persons registered with the Central Employment Center must use the offered vacancies that correspond to their qualifications. Otherwise, the right to benefits and the possibility of applying for an early pension are lost. The responsibility for proving the impossibility of employment in order to assign an insurance pension lies with the Employment Center.

How to fire a pre-retirement employee?

If a citizen has several years left before retirement, this does not mean that he is untouchable. Pre-retirees are fired on the same grounds as other employees. However, the legislator additionally protects this category from unlawful dismissal due to reaching pre-retirement age.

The general grounds for termination of an employment contract are provided for in Article 77 of the Labor Code of the Russian Federation. In fact, a pre-retirement employee can be fired for any of them. Both the employee and the employer have the right to initiate separation. Let's consider the most common grounds for termination of employment relations in relation to citizens of pre-retirement age.

At your own request

If an employee leaves of his own free will, this means that he voluntarily gives up his position. Typically, this is the most convenient option for the administration, since the employee himself initiates dismissal, which, in principle, minimizes the possibility of a conflict situation arising.

Important! The specifics of termination of an employment contract at the initiative of the employee are enshrined in Art. 80 Labor Code of the Russian Federation.

In practice, such termination of employment relations is carried out as follows:

• the citizen writes a letter of resignation of his own free will;
• the manager approves the request and issues an order;
• the employee receives a paycheck and a work book with the corresponding entry.

Question:

Does a pre-retirement worker need to work 2 weeks when leaving voluntarily?

Answer:

Like any other employee, pre-retirement employees are required to notify the employer of their planned resignation at least 2 weeks before the desired date of dismissal. There is no direct requirement in the law that these 2 weeks must be spent at the workplace. The person being dismissed has the right to notify the manager and then go on vacation or sick leave. In addition, the warning period can be reduced by agreement of both parties.

If an employer forces a person to leave the organization, then forced resignation occurs. Unscrupulous managers often “survive” older workers by asking them to resign “kindly,” that is, supposedly of their own free will. Such behavior is unlawful and is subject to criminal liability. However, proving coercion is not easy, especially if the person himself wrote a letter of resignation.

By agreement of the parties

Another “painless” option for dismissing a pre-retirement employee is by agreement of the parties. According to Art. 78 of the Labor Code of the Russian Federation, an employment contract can be terminated at any time if the parties have agreed on this. Often, an employee who leaves by agreement of the parties has the right to also count on additional compensation. However, the payment of such compensation must also be agreed upon between the administration and the dismissed person.

At the initiative of the employer

The grounds for termination of employment relations at the initiative of the employer are set out in Art. 81 Labor Code of the Russian Federation. A pre-retiree may be dismissed for any of them, for example:

• in connection with the liquidation of the organization or reduction of staff (numbers);
• when establishing the fact that an employee is not suitable for the position held;
• for violation of discipline and committing guilty actions.

The law does not protect a pre-retirement employee from layoffs or from loss of job due to the liquidation of an enterprise. However, the procedure for dismissal in these cases is strictly regulated by the Labor Code of the Russian Federation.

For example, if a person leaves due to staff reduction, the administration is obliged to:

• notify of release 2 months in advance - Part 2 of Art. 180 Labor Code of the Russian Federation;
• offer an alternative position - Part 3 of Art. 81 Labor Code of the Russian Federation;
• check whether the employee has a preferential right to remain at work - Art. 179 Labor Code of the Russian Federation.

Inconsistency with the position held must be confirmed by the results of certification conducted in accordance with labor legislation. Before dismissal, the employee must be offered another position that meets his qualifications, if, of course, there is such a vacancy at the enterprise.

If a pre-retirement employee has committed guilty actions, he is subject to dismissal, like any other hired subject. Violations for which you can lose your job are provided for in paragraphs. 5-11 tbsp. 81 Labor Code of the Russian Federation. The list of types of unacceptable behavior includes absenteeism, repeated failure to perform work duties in the presence of a disciplinary sanction, theft of property, appearing at the workplace in a state of alcohol or drug intoxication, etc.

Note.

If a pre-retirement employee is laid off, he can retire early. But only if the following conditions are met:

• 2 or less years are missing from retirement age;

• the employment center could not find a suitable vacancy;
• the person has the required length of service and the number of pension points.

Other grounds

An employment contract with a pre-retirement employee may also be terminated due to:

• expiration of the contract;
• transfer to another employer;
• the occurrence of circumstances beyond the control of the parties.

Law on criminal liability for dismissal of persons of pre-retirement age

The bill quite quickly passed all readings in the State Duma, and on October 3, 2021, it was signed by the President and published. Law 352-FZ amended the Criminal Code, adding Article 144.1 to it. Now, for unjustified refusal to hire or dismissal of citizens who have no more than 5 years left before their old-age pension, employers face criminal prosecution.

The article provides for the following types of punishment for the guilty person:

• a fine of up to 200 thousand rubles;
• wages or other income of the convicted person for a period of up to 18 months;
• compulsory work up to 360 hours.